*IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 20th September, 2010.
+ W.P.(C) No.6032/2008
%
LAJPAT RAI SOBTI ..... PETITIONER
Through: Mr. Vinod Kumar, Advocate
Versus
GOVT. OF NCT OF DELHI & ORS. ..... RESPONDENTS
Through: Mr. Sudhir Nandrajog, Sr. Advocate
with Mr. Vikram Nandrajog & Mr.
Sushil Jaswal, Advocates for R-2
NDPL.
Mr. Sanjeev Sabharwal, Advocate for
R-3 MCD.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. Whether reporters of Local papers may
be allowed to see the judgment? Yes
2. To be referred to the reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
RAJIV SAHAI ENDLAW, J.
1. This petition has been filed claiming that the petitioner is the owner of property No.308/09, Shahazada Bagh Industrial Area, Old Rohtak Road, Delhi-110 035 and is carrying on PVC business therefrom; that in the front portion of the property, the erstwhile Delhi Electricity Supply Undertaking (DESU) had installed a transformer; that the petitioner since the purchase of the property was pursuing DESU, thereafter substituted by Delhi Vidyut Board (DVB) and lastly by the respondent No.2 North Delhi Power Ltd. W.P.(C) No.6032/2008 Page 1 of 12 (NDPL) for removal, re-location of the Transformer; several representations were made in this regard but to no avail. The petitioner claims the existence of the Transformer in his property to be hazardous. It is further the case of the petitioner that the respondent No.2 NDPL at one stage demanded `25,00,000/- from him for removal of the said Transformer and which he refused to pay. The petitioner pleads that the respondent No.2 NDPL has no right to continue with its Transformer in the property of the petitioner and being an instrumentality of State, cannot violate the property rights of the petitioner. This petition is filed for directing the respondents to remove the said transformer from the property of the petitioner and claiming compensation from the respondents.
2. Notice of the petition was issued. Neither the respondent No.1 Govt. of NCT of Delhi nor the respondent No.2 NDPL filed counter affidavit inspite of opportunity. The right to file counter affidavit was closed on 16 th December, 2008. On 6th March, 2009, the respondent No.2 NDPL was directed to produce the original records pertaining to the subject matter of the writ petition. On 7th August, 2009, the counsel for the respondent No.2 NDPL stated that the original records also were not traceable; the petitioner on that date was directed to place on record the photographs of the site and which have been filed by the petitioner. Vide order dated 4 th November, 2009, respondent No.3 MCD was impleaded as a party for arriving at a meaningful resolution of the urgent problem. Thereafter from time to time W.P.(C) No.6032/2008 Page 2 of 12 directions were given for finding an amicable resolution to the matter and for re-location of the Transformer aforesaid. However, the respondent No.3 MCD filed an affidavit stating that it has nothing to do with the matter. On 26th July, 2010, the counsel for the respondent No.3 MCD also stated that there is no dispute that the property where the Transformer / Sub-station is situated is of the petitioner and the respondent No.3 MCD has no control over it.
3. On 26th July, 2010, the counsel for the respondent No.2 NDPL also relied on the order dated 14th March, 2007 of this Court in WP(C) No.535/2007 titled Vijay Kumar Mittal Vs. NDPL. The petitioner in that case also had sought removal of the Transformer in his property; during the pendency of the petition directions for exploring amicable settlement were issued and the counsel for the NDPL on 14th March, 2007 produced Minutes of a Meeting recording terms and conditions on which the Transformer / Sub-Station was agreed to be removed; though it was the case of NDPL that the said Minutes were co-signed by the petitioner in that case also, but the petitioner before the Court denied that he had agreed to what was recorded in the Minutes and it was in these circumstances that the writ petition was disposed of observing that the same involved disputed questions of fact which could not be effectively adjudicated in the proceedings under Article 226 of the Constitution of India. The counsel for the respondent No.2 NDPL relying on the said order had sought dismissal of this petition also. W.P.(C) No.6032/2008 Page 3 of 12 However, this Court in the order dated 26th July, 2010 observed that the parties could not be relegated to the suit if no disputed questions of fact arose. It was observed that the respondent No.2 NDPL had not controverted the claim of the petitioner, neither by filing the counter affidavit nor even in the oral arguments. The only argument of the respondent No.2 NDPL was that the petitioner had not placed any documents of title to the property. In the circumstances, while directing the petitioner to file documents of title to the property as well as a better site plan, liberty was also given to the respondent No.2 NDPL to file an affidavit as to whether it had, upon the unbundling of the DVB, acquired any rights in the portion of the property where the Transformer was installed.
4. Though the petitioner has filed his title documents and the site plan, no affidavit was still filed by the respondent No.2 NDPL.
5. On 16th September, 2010, the senior counsel for the respondent No.2 NDPL sought direction to the petitioner to file the Agreement to Sell in pursuance whereto the Sale Deed of the property produced by the petitioner had been executed. The said Agreement to Sell has also been handed over in the Court by the counsel for the petitioner.
6. The senior counsel for the respondent No.2 NDPL has drawn attention to the Delhi Electricity Reform (Transfer Scheme) Rules, 2001. From Rule 3 it is shown that all the assets and liabilities of the DVB vested W.P.(C) No.6032/2008 Page 4 of 12 in the Govt. of NCT of Delhi. From Schedule F of the said Rules, it is argued that upon transfer from the Government to the various distribution companies as the respondent No.2 NDPL is, no part of the land was transferred to the respondent No.2 NDPL and respondent No.2 NDPL is to only use the said land as a licensee. It is thus contended that the part of the property where the Transformer is installed, did not vest in the respondent No.2 NDPL and the rights if any of the DESU and DVB therein stood vested in the Govt. of NCT of Delhi and the respondent No.2 NDPL merely has a right to use the same as a licensee of the Government.
7. The respondent No.1 Govt. of NCT of Delhi inspite of being a party has not filed any counter affidavit to the petition and the counsel for the respondent No.1 Govt. of NCT of Delhi inspte of second service also failed to appear.
8. The respondent No.1 Govt. of NCT of Delhi is not expected to compel its own citizens to litigate with it when the claims of the said citizens are not controverted and rather admitted. The Supreme Court recently in Urban Improvement Trust, Bikaner Vs. Mohan Lal (2010) 1 SCC 512 reiterated that statutory authorities ought not to raise frivolous and unjust objections, nor act in a callous and high handed manner and cannot behave like some private litigants. It was further held that such bodies are expected to restitute / restore the wrongs committed, upon being found so without requiring unwarranted litigation for the same. Reference may also be made W.P.(C) No.6032/2008 Page 5 of 12 to Dilbagh Rai Jarry Vs. UOI 1973 (3) SCC 554 & Madras Port Trust Vs. Hymanshu International (1979) 4 SCC 176. I therefore do not agree that in a situation as of the present kind also, the petitioner should be directed to file a suit. The order in Vijay Kumar Mittal (supra) relied upon by the counsel for the respondent No.2 NDPL was because of the disputed questions of fact arising in that case.
9. The Supreme Court in Om Prakash Vs. State of Haryana (1971) 3 SCC 792 held that there is no rule that the High Court will not try issues of fact in a writ petition; in each case the Court has to consider whether the party seeking relief has an alternative remedy which is equally efficacious by a suit and whether refusal to grant relief in a writ petition may amount to denying relief. The Division Bench of this Court also in Smt. Anju Devi Vs. Commissioner of Police ILR (1995) 1 Del. 463 held that the argument that the Court has no power under Article 226 to direct delivery of possession cannot be accepted. It was held that such direction can be given where the facts are glaring. It was also held that the alternative remedy of a suit which takes considerable time cannot always be used as a weapon of defence to deny relief to the aggrieved person. It was held that it is the duty of the Court to come to the aid of a person who is oppressed and is in disadvantageous position and it is necessary to make innovations and forge new tools when atrocities are committed by those who are required to enforce the rule of law. The principle that the alleged offender cannot be W.P.(C) No.6032/2008 Page 6 of 12 permitted to take advantage of delay in justice delivery system, was reiterated. The Supreme Court also recently in New Okhla Industrial Development Authority Vs. Kendriya Karamchari Sahkari Grih Nirman Samiti (2006) 9 SCC 524 again held that High Court is not deprived of its jurisdiction to entertain a petition merely because in considering petitioner's right to relief, question of fact may fall to be determined. It was held that in a petition under Article 226 the High Court has jurisdiction to try issues of law and fact and it is only where complex questions of fact arise and the High Court is of the view that those may not be appropriately tried in a writ petition that the High Court should refuse to try those questions and relegate the party to his normal remedy to obtain redress in a suit.
10. However, there are no disputed questions of fact in the present case. The title of the petitioner to the property is borne out from the registered Sale Deed thereof produced by the petitioner. Though in the said Sale Deed there is no reference to the Transformer / Sub-Station aforesaid but the counsel for the petitioner has handed over an earlier registered Sale Deed dated 24th July, 1962 with respect to the same property and in which it is recorded that a Power Station had been installed in two rooms of the property by the DESU and the purchaser shall be entitled to recover rent from DESU.
11. The petitioner has also filed before this Court copy of a letter dated 12th December, 1980 of DESU to the petitioner in which DESU admitted W.P.(C) No.6032/2008 Page 7 of 12 that two rooms in the property of the petitioner had been occupied for Sub- Station equipment and feeding supply to the adjoining area and requesting the petitioner to increase the height of the said rooms to provide proper light in the Sub-Station rooms.
12. The petitioner has also produced before this Court a copy of the letter dated 10th April, 2003 of the respondent No.2 NDPL to the petitioner where also it is stated that after the matter had been got thoroughly investigated it had been found that the Sub-Station in the property of the petitioner was approximately 35 years old and covering a space of 24 ft. x 24 ft.
13. The letters dated 24th April, 2003 & 27th April, 2003 demanding `25,00,000/- from the petitioner were also issued by the respondent No.2 NDPL on the premise of the Transformer being in the property of the petitioner.
14. The respondent No.2 NDPL similarly in letter dated 14th September, 2007 again after stating that the matter had been thoroughly investigated referred to the Sub-Station in the property of the petitioner.
15. None of the aforesaid documents have been disputed by the respondents and contain a categorical admission of the property where the Transformer / Sub-Station is installed being of the petitioner.
16. Photographs filed by the petitioner pursuant to the directions of this W.P.(C) No.6032/2008 Page 8 of 12 Court also show the portion where the Transformer / Sub-Station is installed to be part of the property of the petitioner. The said portion is along the building line of the remaining property of the petitioner as well as the other properties on the street.
17. Similarly the detailed site plan filed in pursuance to the directions of this Court also shows that the covered space on the First and Second Floors above the Transformer / Sub-Station rooms is part of the property of the petitioner.
18. There is thus sufficient material before this Court to conclude that the property where the Transformer / Sub-Station of the respondent No.2 NDPL is installed belongs to the petitioner.
19. Neither the respondent No.2 NDPL nor the respondent No.1 Govt. of NCT of Delhi have claimed any title to the said portion of the property. The property having been established to be of the petitioner, the use thereof for installation of Transformer / Sub-Station is but as a Licensee. Cases are not unknown where such Transformers have been installed by DESU/DVB in the properties of the others. Reference can be made to the well known case of Uphaar Cinema where also the DESU/DVB had installed the Transformer in the basement under the Cinema Hall and which belonged to the Cinema.
20. The petitioner, it is borne out from the record at least since the year 1980 i.e. for the last more than 30 years has been calling upon the DESU / W.P.(C) No.6032/2008 Page 9 of 12 DVB/NDPL to remove the Transformer. The license / permission granted to the respondents thus stands extinguished. The respondents now have no right to continue use of the premises of the petitioner and are liable to be directed to vacate the same.
21. Insofar as the argument of the respondent No.2 NDPL of the Transformer / Sub-Station being necessary for supply of electricity not only to the premises of the petitioner but also other adjoining properties is concerned, the responsibility thereof does not vest with the petitioner. It was for the respondents to have in the last 30 years aforesaid taken steps for finding alternate site for the Transformer / Sub-Station; inexplicably the same has not been done. It is the responsibility of the respondents to make alternate arrangements and the respondents on the plea of continuance of the Transformer being necessary cannot perpetuate their illegal occupation on the property of the petitioner. The respondents could have always negotiated with the petitioner for continuance on consideration. No effort in that regard also has been made. On the contrary, `25,00,000/- were demanded from the petitioner for vacating. In fact, the said demand alone shows that there is no necessity to continue in the property of the petitioner and the respondents are so continuing only to save the expenses of re- location.
22. The petitioner has also claimed compensation of `25,00,000/-. Troubled by the laxity of the respondents, in the order dated 26th July, 2010, W.P.(C) No.6032/2008 Page 10 of 12 the counsels were also asked to come prepared to address on the question of grant of interim relief to the petitioner. The petitioner in response thereto has handed over an affidavit stating the letting value of the portion to be `40,000/- per month. However, no document in that regard has been produced. The area in occupation of the respondents is 264 sq. feet. It is situated at Rohtak Road near Sarai Rohilla, Delhi a prime industrial / commercial locality of the city. I have no doubt in my mind taking judicial notice of the letting values in Delhi that the said space would at least fetch a rent of `26,000/- per month. The petition has remained pending for the last over two years. The unauthorized occupation is of more than thirty years as aforesaid. However, I still refrain from awarding the compensation claimed to the petitioner and against the respondents in the fervent hope that the same would prevent the agony and loss of the petitioner from being prolonged and the respondents would at least now be spurred into action and stop the unauthorized use of the property of the petitioner.
23. In the circumstances aforesaid, the writ petition is allowed with the following directions:
(i) The respondents are directed to vacate the property aforesaid on or before 30th June, 2011.
(ii) However, if the respondents do not so vacate the property, the respondents 1 & 2 shall jointly and severally be liable to pay to W.P.(C) No.6032/2008 Page 11 of 12 the petitioner a sum of `26,000/- per month with effect from 1st July, 2011 to 31st December, 2011.
(iii) However, if the property is not so vacated by 31st December, 2011 also, the respondents shall be deemed to be in defiance and contempt of the orders of this Court and their concerned officials shall be liable to be proceeded against therefor.
(iv) The aforesaid is without prejudice to the right of the petitioner to take appropriate proceedings for recovery of any amounts which may be due from the respondents 1 & 2 for unauthorized use and occupation of the property.
(v) The petitioner is also awarded costs of `50,000/- of this petition against the respondent No.2 who alone has contested this petition. Costs be paid within four weeks of today.
RAJIV SAHAI ENDLAW (JUDGE) 28th September, 2010 'gsr' (corrected & released on 29th November, 2010) W.P.(C) No.6032/2008 Page 12 of 12